Someone passing away without a valid will is more common than you might expect. When this happens in England, the person is said to have died intestate, and it means the law steps in to decide what happens to their estate.
Rather than the deceased’s wishes determining who receives what, the rules of intestacy take effect. And while these rules aim to provide a fair structure, they often don’t reflect what the individual would have wanted, particularly for unmarried couples or blended families.
Who Administers the Estate?
When there’s no will, there’s no named executor. Instead, a relative, typically a spouse, child, or close family member, must apply to the Probate Registry for what’s called a Grant of Letters of Administration. This document gives them legal authority to manage the estate. They are then known as the administrator. The administrator fills a similar role to the executor when the deceased made a will.
The administrator’s job involves collecting and valuing all the assets, paying off any debts and taxes, and distributing the remaining estate in line with the intestacy rules. It’s a responsible role and can sometimes be complicated, especially if the estate includes property or multiple beneficiaries.
Applying for a Grant of Letters of Administration
The process of obtaining the grant is broadly similar to applying for probate when a will exists. The key steps are:
- Check if a grant is needed – Not all estates require probate. If the estate is small or held jointly (e.g. a joint bank account), a grant might not be necessary.
- Value the estate – The administrator must work out the value of the estate, including all assets and any debts owed.
- Report to HMRC – Even if no inheritance tax is due, the estate still needs to be reported to HMRC using the appropriate forms.
- Apply online or by post – The administrator applies to the Probate Registry, including the death certificate and estate valuation, along with a fee (currently £300 for estates over £5,000).
- Receive the grant – If everything is in order, the Probate Registry will issue the Grant of Letters of Administration.
- Deal with the estate – Once the grant is received, the administrator can collect the deceased’s assets, pay debts, and distribute what’s left according to the rules of intestacy.
This process can take several months, especially if the estate is complex or includes property, business interests, or overseas assets.
How Are Assets Distributed?
The rules of intestacy prioritise certain relatives in a set order. This is how it works:
- Spouse or civil partner: If there are no children, the entire estate goes to them. If there are children, the spouse receives a statutory legacy (currently £322,000), all personal possessions, and half of the remaining estate. The other half goes to the children.
- Children: If there’s no surviving spouse or civil partner, children inherit everything, divided equally.
- Other relatives: If there are no children or spouse/civil partner, the estate is shared according to a hierarchy – parents, siblings, nieces/nephews, grandparents, aunts/uncles, and so on.
- No close family? If no one fits the bill, the estate passes to the Crown through a process known as bona vacantia.
The UK government has provided a useful online tool to check who can apply for probate and inherit if someone dies without a will.
One crucial point: unmarried partners have no automatic right to inherit, even if they lived with the deceased for decades. This often comes as a nasty surprise and can lead to hardship or disputes.
Why Making a Will Matters
Intestacy can lead to outcomes no one anticipated. It might exclude people the deceased cared deeply for or create disputes between family members. Making a will is the best way to:
- Decide who inherits your assets
- Provide for your partner (especially if you’re not married or in a civil partnership)
- Appoint guardians for your children
- Make the probate process simpler and more efficient
It also brings peace of mind, knowing that your wishes will be respected and your loved ones will be protected.
About the Author
James McMullan is a Partner and also heads up our Private Client team. James started his career as a family lawyer, but over the years, his practice has grown to encompass all aspects of private client law, including estate planning, Inheritance Tax, lasting powers of attorney, lifetime gifts, living wills, mental capacity issues, probate and contentious probate, trusts and, of course, wills.
James prides himself on spending sufficient time with clients at the outset of a matter to fully understand their position, needs, and objectives. He is committed to resolving disputes effectively, frequently using alternative dispute resolution (ADR). Given its costs and uncertainty, court litigation is a last resort.